AMPAC, a wholly owned subsidiary of the Pinnacle Food Group ("Pinnacle") since 1998, was a hog-slaughtering, butchering and meat-packing facility located in Chicago, Illinois. Dan Ochyiski, the owner and President of Pinnacle, also acted as President of AMPAC. From August 2000 until the plant's closure in November 2001, Paul Espinosa acted as AMPAC's Director of Operations. Ochylski and Espinosa shared a combined fifty years' experience in the meat-packing business. Prior to its closure, AMPAC employed approximately 350 individuals. Plaintiffs are, and represent a class of, former AMPAC employees who lost their jobs after the plant closed on November 16, 2001. Plaintiffs were members of United Food and Commercial Workers Local 100a (later consolidated into Local 546 100a).

AMPAC operated under inspection by the United States Department of Agriculture ("USDA"). During production hours, the USDA stationed at least five inspectors on-site at the AMPAC processing facility: one veterinarian inspector-in-charge, three inspectors on the "hot side" (the slaughter side of the plant), and one inspector on the "cold side" (where cutting and packaging occurred). Between November 1999 and November 2001, over 45 different USDA inspectors monitored the AMPAC facility. The USDA inspectors were on hand in order to, among other duties, monitor hog processing, ensure that conditions in the plant complied with federal regulations, and either certify product for shipment and sale or condemn product that did not meet or could not be reconditioned to meet USDA standards.

Inspectors at the plant also on occasion issued "Noncompliance Records" ("NR"), which outlined in writing instances where the inspector noted activity at the plant that did not comply with USDA regulations. The NR describes the unsatisfactory condition, identifies its date and time and indicates which supervisor was advised of the condition. The NR also informs plant personnel that "this document serves as written notification that your failure to comply with regulatory requirements could result in additional regulatory or administrative action." (R. 25, Def.'s Facts, Ex. F, NRs.) Such additional action could include, but was not limited to, "tagging" the adulterated product to prohibit its sale and withholding or suspending inspection, which prevents any product in the plant from being released for shipment or sale. The issuance of an NR does not necessarily lead to additional action by the USDA. Espinosa, who has worked in several different meat-packing plants over the last 35 years, stated that "none of the facilities [he] worked at had their inspection withdrawn or suspended by the USDA during [his] tenure," despite the receipt of numerous NRs. (R. 25, Def.'s Facts, Ex. A, Espinosa Del. ¶ 4.) Defendant points out that the record contains no evidence that the failure to ameliorate a problem raised in an NR automatically leads to the suspension of inspection. (R. 30, Def.'s Facts ¶ 34.)

After generating an NR, an inspector generally presents it to an AMPAC manager or supervisor, who then responds in writing on the NR, identifying corrective measures taken to address the problem. Aside from issuing NRs, the USDA inspectors interacted daily with AMPAC management, often in attempts to resolve noncompliant activity in the plant without additional regulatory action.

In 1997 the USDA Food Safety and Inspection Service ("FSIS") published a proposal in the Federal Register to revise its sanitation requirements for official meat and poultry establishments. The revisions were intended to transition from a highly prescribed regulatory environment towards more flexible performance standards. The FSIS replaced a long list of "dos and don'ts" for meat-processing plants with results-driven standards that afforded plants "the flexibility to determine what is appropriate and sufficient for maintaining sanitary conditions and preventing adulteration of the product." (R. 23, Pls.' Facts, Ex. 2, FSIS Regulations at 56402.) The FSIS emphasized that the new rules created more flexible food-safety measures, unlike prior sanitation regulations that were "unnecessarily prescriptive, impeded innovation and blurred the distinction between establishment and program employee responsibilities for maintaining sanitary conditions." (Id.) The new rules became effective in January 2000.

Although Ochylski owned the AMPAC facility and acknowledged that he was ultimately responsible for ensuring that the facility met USDA standards, he admitted that he has no specialized training in food safety. It is clear from Ochylski's deposition testimony that he was not familiar with the specifics of the USDA regulations governing meat-packing plants and their enforcement, including the process for dealing with NRs and the consequences of failing to correct a deficiency noted in an NR. Ochylski opined at his deposition that the USDA standards are "not concrete" and leave room for interpretation in defining the sanitary conditions at a plant, but he also noted that although NRs are fairly common in the industry, they are serious and must be addressed. Ochyiski stated that he was not aware of the gravity of the situation at AMPAC until he saw all of the NRs issued that fall at the end of October 2001. As President and owner of AMPAC, it was not Ochylski's job to answer NRs. Rather, Espinosa, as the plant manager, handled the NRs on AMPAC's behalf; he responded to nearly every NR issued in 2001.

AMPAC employed a quality assurance ("QA") team that inspected the facility each morning, a full-time maintenance staff; and an evening cleaning crew of 13-15 employees. The QA team arrived in the early morning, prior to the arrival of the USDA inspectors and prior to the start of production in order to ensure that the production areas were sanitized and ready for operation. At 5:45 a.m. and 6:30 a.m., respectively, USDA inspectors conducted pre-operation inspections of the cold side and hot side. If the inspectors observed any sanitation issues, the QA staff would address the problem. AMPAC placed many of its own employees throughout the facility to monitor production, sanitation and USDA compliance. For example, AMPAC placed six employees on the "cold side" who were responsible for monitoring condensation and swabbing any drips as they arose. AMPAC's sanitation team inspected each department daily. Each night, the evening cleaning crew sanitized the facility. AMPAC also contracted with a pest extermination service, Assured Pest Control ("APC"), which visited the facility on weekends.

Despite these efforts, AMPAC received a series of NRs during 2001. Between January and July 11, 2001, the USDA inspectors issued nine NRs to AMPAC. The grounds for noncompliance ranged from condensation and water dripping on product to flaking paint and other contaminants on the product. New NRs often cross-referenced prior NRs with similar root causes, and sometimes reiterated that "failure to comply could result in additional regulatory or administrative action." Espinosa investigated each NR, instructed company employees how to rectify the situation, reconditioned contaminated product when possible, and reported the measures taken to the USDA. None of the NRs issued in the first eight months of 2001 directly resulted in additional administrative action by the USDA. AMPAC did not receive any NRs during the remainder of July through the middle of September.

Starting on September 12, 2001, however, the USDA issued a barrage of NRs, citing rodent droppings in an adjacent building, condensation and water dripping onto work areas. The USDA issued a total of six NRs in September, each of which Espinosa investigated and addressed with attempted remedial action. Additionally, AMPAC tried to ameliorate the ongoing condensation problems by upgrading an existing door and installing a new door designed to reduce the amount of cold air entering the facility. Aside from a brief production stop on September 20, the USDA took no further administrative action as a result of the NRs in September. The number of NRs issued by the USDA increased to eight during the month of October. The October NRs cited three instances of rodent droppings inside the facility, three instances of overhead drips onto product, one instance of rust touching product and one failure to produce part of its documentation relating to its mandatory hazard analysis. Finally, on October 31, after the inspector noticed the third instance of rodent droppings at the facility, the USDA notified AMPAC that it was withholding inspection at the facility, which meant that AMPAC could not produce product for sale.

On October 31, 2001, following the withdrawal of inspection, AMPAC immediately began taking steps to regain inspection and resume operations. AMPAC first terminated its existing exterminator and hired another, Ecolab. The company also retained a food safety consultant to audit conditions at the plant on the evening of October 31. The consultant identified several areas of improvement, but concluded that AMPAC did not have intractable pest-control or structural problems. Ecolab also provided a written report to Espinosa, which identified some structural problems at the plant. Ecolab ultimately represented that it could totally eliminate any rodent problems and promised to provide an extermination plan within the week. Meanwhile, AMPAC's maintenance team continued repairing the facility as recommended by the consultant. On November 1, 2001, AMPAC responded in writing to the October 31, 2001 NR. The report detailed the recently completed maintenance, the hiring of Ecolab and the food-safety consultant, and the increased pest-control procedures. After receiving the report the USDA restored inspection, thus permitting AMPAC to resume operations.

AMPAC received six more NRs between November 1 and November 6. These NRs addressed similar issues to those raised in prior reports: condensation, flaking paint, rust, discarded meat and fat littering the plant and rodent droppings. AMPAC responded to each NR in writing, and also took extra measures to ensure that the adverse conditions in the plant were rectified. On November 1, for example, Ochylski met with AMPAC employees to ask that they cooperate with management in maintaining USDA standards at the facility. On November 2, Espinosa sent a ...

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